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In honor of Valentine’s Day, I wanted to devote a blog entry entirely to true love- the type of bona fide (good faith), genuine love that all great marriages are made of… or at least, they’d better be if an immigration petition is involved!
Fraudulent, also commonly referred to as “sham” marriages that individuals enter into solely for immigration purposes. are very strictly prohibited and harshly penalized pursuant to current immigration laws. There are both civil and criminal penalties for those hopeful immigrants who choose to “fake” an authentic love relationship with a U.S. citizen in order to gain access to this country.
Civil penalties for sham marriages include a permanent bar for ANY subsequent immigrant petition(s), no matter the type. Note that there is also no waiver whatsoever available for those individuals who have been found to have committed marriage fraud in the past… in other words, once it’s decided that an individual has committed marriage fraud, he/she has no hope of ever returning to the U.S. under any sort of immigrant visa!
Criminal consequences are also severe. Sham marriage participants could potentially face up to five years in jail. They could also be required to pay a fine in the amount of up to $250,000. Sham marriage participants can further be penalized for false statements provided to government officials (in other words, false representation).
How does USCIS distinguish a sham marriage from one based on genuine love? They have their ways. Interview questions are specifically designed to delve into the particular details of a petitioner’s relationship to assess how well the couple really knows each other and detect any attempts at fraud.
If USCIS finds that a marriage is not bona fide and a couple wishes to dispute this, an appeal or motion to reopen is the only available option. If you are in this position, I suggest that you take your “achy-breaky heart” to an attorney to discuss potential substantive or procedural legal issues that the attorney can assist you with challenging.
If you and your loved one are considering filing a marriage-based petition, I recommend that you consult with an immigration attorney to discuss your relationship and prepare to present proof to USCIS that your marriage is bona fide. Visit our website for more information on spousal and fiance visas. Please contact The McKellar Law Firm for a free consultation regarding your case.
*Special thanks to Tina Turner (“What’s Love Got to Do With It?”) and Billy Ray Cyrus (“Achy Breaky Heart”) for inspiring the song references. Cheesy and ridiculous? Admittedly. But then again, so is Valentine’s Day in general…
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Todd Ruger of the Blog of Legal Times recently published an interesting article: Senator Patrick Leahy of Vermont, Chairman of the Senate Judiciary Committee, stated last week that they will be evaluating immigration reform in the months ahead. The article says that Senator Leahy’s remarks indicate that perhaps the Committee is contemplating reforms applicable to the H1-B and H2-A visas; however, the exact plans of the Committee and scope of anticipated reforms remain unclear.
I have previously blogged about H-1B and H-2A visas, and I am hopeful for reform in both of these areas. However, the scope of reform must be greater. Many sources have recently indicated a need for reform in a crucial area: entrepreneur visas. Bill Aulet and Matt Marx wrote a great article stating that three of every ten students at MIT are foreign-born, and entrepreneurs in particular experience difficulty attaining lawful permanent residence in the United States. They emphasized that current H-1B visas do not cater to the skills of entrepreneurs; however, they noted that entrepreneurs (no matter their origin) have the ability to create much-needed jobs, and they are therefore “essential” to the continued growth of the American economy. The authors assert that outdated American policies are enabling other countries to gain (and America to lose) these foreign-born entrepreneurs.
So… what is the solution? Aulet and Marx suggest following the example of the United Kingdom and inventing a category similar to the EB-1 (priority worker) category for entrepreneurs. Another alternative I propose is that we create a high-quota dual-intent non-immigrant visa (closely resembling the H-1B visa) that provides a fast-track to a green card. Assuming their business model is approved by USCIS, aspiring entrepreneurs could have an adequate period of time in which to start their business, create a set number of jobs, and produce results. Assuming they meet the conditions of the visa within the allotted time, entrepreneurs shall be able to adjust status and attain a green card and Lawful Permanent Resident status. A final alternative is that the currently strict requirements for the EB-5 (Investor/Entrepreneur) visa or O-1 (Extraordinary Ability in Business) could be decreased, granting younger, less-experienced entrepreneurs with lower income adequate time to establish their business in the U.S. immediately upon completion of their college and/or graduate school education.
Professionals and individuals in specialty occupations can qualify to receive an H1B visa. While the H1B visa is a nonimmigrant visa, it is advantageous and unique in that it allows applicants to have dual intent- that is, they can enter in nonimmigrant status yet still hope to remain in the United States upon the expiration of their visa. H1Bs enable visa holders to easily transition to Lawful Permanent Resident (LPR) status by applying for an employment-based immigrant visa while they remain in H1B status. While there is currently a backlog for most employment-based visas, H1B visas last six years and can be renewed in yearly extensions.
Employers of H1B applicants have numerous responsibilities throughout the filing process. They must complete a letter describing the applicant’s job position, and they must pledge to pay the prevailing wage or actual wage. Also, they must go through the Labor Certification process. This process (which involves actively advertising and recruiting as well as interviewing qualified American candidates for the intended position) is designed to ensure that no “adverse effect” will be placed upon equally-qualified American workers if the applicant is hired.
H1B filings for the next fiscal year (2014) will begin on April 1, 2013. Since there is a 65,000 visa quota (American university and college graduates attaining a master’s degree or greater can qualify for one of 20,000 extra visas), some anticipate that the filing period will only last between several days to a few weeks. This being said, please contact an immigration attorney at The McKellar Law Firm to begin this process as soon as possible. To learn more about eligibility and requirements for the H1B visa, please visit our website.
On March 4, 2013, the Department of Homeland Security (DHS)’s new provisional waiver regulation (commonly known as the “family unity rule) will go into effect. The regulation (Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives) permits U.S. citizens’ immediate relatives (spouse and parents) to remain in the U.S. while their waivers of unlawful entry are processed. Although immigrant immediate relatives still must return to their home country’s U.S. consulate to have visa processing completed (which takes weeks), they will not have to return to their home country during the long time while the application is pending (which takes months and sometimes years!)
It is important to be aware of what the provisional waiver does not accomplish. Note that further unlawful presence is not waived by a provisional waiver. Employment authorization nor lawful status are provided via the waiver. An individual can still find himself/herself subject to removal proceedings in spite of having been granted an approved provisional waiver.
Waivers of unlawful entry work as follows: Immigrants must be lawfully paroled or admitted into the U.S. in order to become lawful permanent residents in accordance with the Immigration and Nationality Act (INA). Those who entered illegally must apply for and obtain a waiver before being eligible to obtain a family-based visa. In order to qualify, they must have their application processed by the U.S. consulate or embassy in their home country. However, when unlawful entrants leave the U.S. to return to their home country and ultimately are denied the waiver, they can incur a three or ten year bar restricting them from the U.S on account of the length of their overstay.
There are some individuals who are presently ineligible for the provisional waiver: those who are not physically present in the U.S., those who are subject to an outstanding deportation order, those who are inadmissible due to criminal convictions or misrepresentation, and spouses and parents of Lawful Permanent Residents (LPRs).
To qualify for a waiver of unlawful entry, an applicant must typically prove “extreme hardship” based on “a totality of the circumstances.” This standard remains the same in spite of the new rule. It is possible that DHS will extend this rule to other immigrants—including LPRs’ immediate relatives and/or relatives of U.S. citizens—over time.
Thank you to the following sources for information regarding the Provisional Waiver: http://ethnoblog.newamericamedia.org/2013/01/dhs-publishes-new-provisional-waiver-to-help-some-families-stay-together.php and http://www.rreeves.com/publications_detail.php?newsId=1026.
Have you or your spouse entered the U.S. illegally and now want to apply for a spousal visa? If you want to apply for a waiver of inadmissibility using the new provisional waiver, please contact The McKellar Law Firm to begin the process.
Most citizens are focused on the problem of and possible solutions to America’s current deficit. However, it is imperative that we broaden our focus and consider issues that are likely to outlive America’s financial fiasco.
While the number of births in America is declining, the Baby Boomer population (which consists of adults ages 65 and older) is likely to grow to twice its current size over the next fifty years. Demographer Dowell Myers asserts that immigrants are necessary to join the American work force to counter-balance the large number of retirees who will stop working at around the same time. The United States will require a greater number of taxpayers to financially support Medicare and Social Security programs. And with more senior citizens, the United States will require more employees in health-related occupations.
Current immigration quotas and visa eligibility requirements restrict the number of immigrants who can live the American dream. However, for the sake of the rising elder population and America’s future prosperity, we must begin to acknowledge the difficulties that the elder population will bring and welcome new immigrants to assist us in overcoming them.
Please visit The McKellar Law Firm’s website to learn if you are eligible to obtain a spousal visa or employment-based immigrant or nonimmigrant visa.
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Many individuals who entered the United States illegally are interested in becoming legal by obtaining a visa and eventually hope to attain a path to citizenship. Unfortunately, visa options for illegal entrants are extremely limited.
Take, for example, the spousal visa (Form I-130). Let’s say that a woman illegally entered the United States two years ago. Since that time, she has married a United States Citizen and has decided to obtain a spousal visa and adjust status to become a Lawful Permanent Resident. In spite of the valid marriage (and even if she and her husband have children), her visa petition will initially be denied. Her only option for obtaining the visa is to leave the United States, return to her home country, and apply for a hardship waiver at the United States consulate. Hardship waivers are extremely difficult to attain and involve the immigrant proving that her leaving the United States would cause a serious hardship to her United States Citizen relative (for example, if her spouse had a major medical condition and she was fully responsible for caring for him). The fact that this woman has established a life in the United States and has started a family will not meet the standard for hardship. Also, due to her illegal presence lasting over a year, when the woman leaves the United States, she will be subject to a ten-year bar– meaning she cannot re-enter the United States for at least ten years. (Those who have illegally been in the United States for six months to a year will incur a three-year bar).
There is considerable debate as to whether illegal entrants should ever be eligible to attain citizenship, but we will hopefully see a variety of immigration reforms over the next few years. If you are interested in applying for a hardship waiver or want to know more about waivers of inadmissibility in general, please visit our website. As always, if you are interested in discussing your situation with an attorney or seeking representation on a waiver, please do not hesitate to contact The McKellar Law Firm.
Posted in: Immigration
When you are seeking legal assistance for an immigration matter, it is understandable that a lot is at stake for you and your family. It is tempting to select an attorney who promises a definite result or offers an attractively low fee. However, please be aware that there are unfortunately people who can (and sometimes do) take advantage of your need for representation.
One man recently received a five-year jail sentence for dishonestly holding himself out to be an immigration attorney. Even though he was not a licensed attorney in any state, he would make advertisements on Spanish radio stations, request large attorney fees, promise legal services and definite results, and then never actually attempt to provide any assistance whatsoever. He committed this fraudulent behavior in more than one state.
If you are in the process of selecting an attorney to assist you with an immigration matter, we recommend that you invest the time to do your research first. Ensure that the attorney who you retain is licensed and knowledgeable. Consider the law firm’s reputation. If at all possible, meet personally or speak over the phone with the attorney to be certain that you feel comfortable with him or her. If you have any doubts at all about an attorney’s or law firm’s credibility, don’t be afraid to ask questions. Any attorney you retain should care about your case and be willing to address your concerns. Understand that attorney fees vary, and while cost is a consideration, it should not be your primary consideration when the immigration status of you or your loved one is on the line. Finally, be extremely wary of an attorney who guarantees you a definite result.
If you are in need of a licensed immigration attorney who makes your case a priority, please contact The McKellar Law Firm for a free consultation.
Extraordinary, indeed. First, Canadian Playboy Playmate Shera Bechard was approved for an O-1 “exceptional ability” visa in June 2012. Now, Canadian burlesque dancer Bettina May has earned a rare E-11 work visa on account of her “extraordinary burlesque ability.” USCIS found that Ms. May met the strict criteria required (being at the very top of her field and having received awards, media attention, and international acclaim) and approved her for a competitive E-11 visa that leads to an automatic green card. By receiving approval, Ms. May joins the ranks of former E11 recipients Yoko Ono, John Lennon, and the Miss Universe pageant winner.
I’m sure readers are thinking, “Great news! If a Playboy Playmate and burlesque dancer were approved, it can’t be THAT difficult to get one of these visas…” However, many unquestionably qualified individuals who have earned advanced degrees and accumulated years of practical experience in their field are unable to meet the standard for “extraordinary ability.” To receive approval for an O-1 nonimmigrant visa or EB-1 immigrant visa for extraordinary ability, an applicant must show that such ability has led to international or national attention and that he or she is more accomplished than the vast majority of others within the field. More specific requirements vary depending upon the applicant’s field and the type of visa the applicant is seeking.
If you think you are eligible for a visa based on having attained the highest possible level of achievement in your field, please visit our website for specific requirements of the O-1A and O1B nonimmigrant visa and EB-1 immigrant visa.
The Huffington Post recently published an article stating that the labor and dedication of immigrant farm workers in managing crops and livestock is largely responsible for providing the Thanksgiving feasts we enjoy with our families each year. In spite of their efforts, farm workers typically earn less than $20,000 per year, endure temperature and weather changes, labor for hours on end, and enjoy no sick leave or vacation time. The majority of these farm workers (72%) are foreign-born and many are Latino, and a lot of them are unfortunately plagued by devastating issues such as slavery, sexual violence, and unfairly decreased pay on account of their undocumented status.
Another problem is that, in spite of the essential services immigrant farm workers provide, there are simply not enough of them. For example, an article written by McClatchy Newspapers states that North Carolina needed 7500 farm workers this year; only 270 U.S. Citizens submitted applications for these positions. The article further states that some farmers have even had to resort to using prison inmates to assist them at poultry plants. Fortunately, seasonal agricultural workers can legally come to the U.S. on a temporary basis if a farmer petitions for them to have a nonimmigrant H-2A visa. These visas are beneficial to farmers, enabling them to hire others to assist them with crucial work. However, unions allege that H-2A visa recipients are unable to switch employers, that H-2A holders could negatively affect employment for US workers, and that unions want the recipients to have some method of attaining citizenship (or amnesty, in the event that the workers are undocumented and have not acquired H-2A visas). Farmers allege that the H-2A application processes is both time and cost intensive for them.
Be sure to stay updated on legislation in the coming months and years that could increase protections for immigrant farm workers and hopefully allow them to remain in the U.S. on a permanent basis. If you are interested in learning more about qualifications and limitations on H-2A visas for temporary seasonal agricultural workers, please visit our website. If you or someone you know is interested in petitioning for H-2A visa recipients, please contact The McKellar Law Firm for a free consultation.
Sweet DREAMs: Potential Immigration Reform on the Horizon; Differences between the DREAM Act and Deferred Action
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